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Are Armstrong, U.S. headed for heavyweight court fight?

Brent Schrotenboer, USA TODAY Sports
2:16 p.m. EDT September 25, 2013

In this 2004 file photo, Lance Armstrong waves from the podium after winning the 15th stage of the Tour de France cycling race. Armstrong is facing the federal government in a legal fight with tens of millions of dollars at stake, and a loss could bankrupt the cyclist who until last year ranked among the wealthiest and most popular athletes in the world.(Photo: Peter DeJong, AP)

Story Highlights

The federal civil fraud case vs. Lance Armstrong heads to a hearing in November in Washington, D.C.

The latest volley came Monday when the government responded to Armstrong's request to throw out the case

If the judge rejects Armstrong's request, the case could drag well into next year or longer as stakes increase

Like a hyped heavyweight fight, the federal government's civil lawsuit against Lance Armstrong has all the makings of a slugfest.

It has the big names – officially titled the United States v. Lance Armstrong.

It has a big purse – with as much as $120 million at stake.

It also has the best support staff – top attorneys – that two wealthy opponents can afford.

But will it last more than the first round?

Late Monday evening, the government filed a scathing court document against the former cyclist in response to his arguments about why the case should be thrown out of court.

The government likened Armstrong to a thief and said he carried out "arguably the greatest fraud in the history of professional sports."

It'll soon be up to a federal judge to decide who's right. In November, U.S. District Judge Robert Wilkins is scheduled to hear arguments about whether the case should proceed – a round that might be too hard for Armstrong to win against the government, according to observations from independent attorneys.

So this legal battle could drag on – and get uglier, possibly wringing out all the doping laundry of the past 13 years while racking up legal bills from San Francisco to Washington, D.C., where the case will be heard.

"The bar to get a motion to dismiss granted is extremely high," said Tony Anikeeff, an attorney who specializes in similar cases for the firm Williams Mullen.

Because of that, Anikeeff said it would be "very, very hard" for Armstrong to win at this stage. By law, at this stage of the case, he said the court must "accept all allegations in the (plaintiff's) complaint as true, and (the court) needs to deny the motion to dismiss if there is any way one can divine a credible case (by the plaintiff who filed the lawsuit)."

Earlier this year, the government decided to join a suit originally filed under seal in 2010 by former Armstrong teammate Floyd Landis, who stands to get a cut of the damages as a whistleblower if the government prevails.

In its complaint, the government said it would not have paid about $40 million to sponsor the U.S. Postal Service cycling team from 1998 to 2004 if it had known Armstrong and others were violating their contracts by using banned drugs and blood transfusions to gain a competitive edge.

Under the False Claims Act, those damages could be tripled to around $120 million.

In Armstrong's defense, his attorneys asked to have the case dismissed, arguing that the government should have known he was doping all along despite the fact he lied about it for several years until finally confessing in January – in a televised interview with Oprah Winfrey. Instead of the USPS being defrauded by Armstrong's doping, his attorneys even argued that the USPS actually benefited from the sponsorship because of the media attention that came with his success in the Tour de France. They also argued the case was too old to bring under the six-year statute of limitations.

"It's difficult to win" a motion to dismiss against the government in a case like this, said Jason Workmaster, an attorney in Washington, D.C., who specializes in similar cases for the firm McKenna Long & Aldridge. "Armstrong's lawyers have staked out a pretty gutsy position, but it's potentially a high bar. And when the government has intervened, it's potentially even more difficult."

Government responds

The government bluntly responded to Armstrong's arguments to dismiss the case in court filings late Monday.

Quoting a different case, the government said, "The law of fraud does not … require that an aggrieved party have proceeded from the outset as if he were dealing with thieves."

The government noted that Armstrong concealed his doping so successfully that his sponsors believed his lies like millions of others.

This is key at this stage in the case because concealment can nullify the argument that the case is too old to bring, said Michael Morse, a Philadelphia-based attorney who specializes in similar fraud cases.

"The government makes a strong argument that… there is no basis for the court to rule that the statute of limitations has expired," Morse said.

Attorneys for Landis even argued in a filing Monday that the statute of limitations is suspended by law because the U.S. has been at war since the terrorist attacks of 2001 – even if this case is unrelated to any war.

As for Armstrong's argument that the USPS got "exactly what it bargained for," the government scoffed in its response.

"The Government did not get a 'winner,'" the government stated. "On the contrary, it got a fraud, and all of the publicity and exposure that goes along with having sponsored a fraud. That is decidedly not what the Government bargained for."

Long fight?

This issue might be part of a bigger fight down the road. If Armstrong fails to have the case dismissed, the case will move to the discovery stage and possible trial, where the sides are expected to argue about how much – or whether – the government suffered in financial damages.

In government fraud cases, "it's all about whether the government got what it thought it was paying for," Workmaster said.